Restrictions under the Nutrition & Health Claims Regulation to extend to B2B communications?

There seems to be a ruling likely from the European Court of Justice (ECJ) that ‘commercial communications’ intended for professionals, but with the goal of indirectly reaching consumers, would have the same restrictions apply to them under the nutrition and health claims regulation as apply to foods and supplements marketed directly to consumers. This position is supported by the opinion of the advocate general and this is usually followed by the judge in such cases; the judgement is expected in the next couple of months.

The case concerns the German trade association Verband Sozialer Wettbewerb and vitamin D3 supplement company, Innova Vital, in the case of Verband Sozialier Wettbewerb Case C-19/15. In this instance, although the advertisement concerned was directed at health professionals the intended target was consumers, with the health professional being offered ‘free information material for his practice’ (to be distributed to patients.)

This interpretation will mean that commercial B2B communications concerning health or nutrition claims not authorised under the 1924/2006 Regulation must ensure that their objective is not to reach consumers, directly or indirectly.

The 1924/2006 Regulation Art1 para 2 states : “This Regulation shall apply to nutrition and health claims made in commercial communications, whether in the labelling, presentation or advertising of foods to be delivered as such to the final consumer, including foods which are placed on the market unpacked or supplied in bulk. It shall also apply in respect of foods intended for supply to restaurants, hospitals, schools, canteens and similar mass caterers.” The ECJ therefore is likely to interpret the words ‘delivery’ to include ‘indirect delivery’ to the final consumer as well, even if it is via a health professional such as a doctor, pharmacist or nutritionist who should be able to affect the consumer’s understanding about the properties of the product

The concern is that this will further restrict communication between businesses about a food or food supplement.

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